Deputy Commissioner of Taxation, in the matter of ABW Design & Construction... [2012] FCA 346 | Case summary

REASONS FOR JUDGMENT 1 A Deputy Commissioner of Taxation (Commissioner) suing in his official name has applied under s 459P of the Corporations Act 2001 (Cth) (Corporations Act) for an order that ABW Design & Construction Pty Ltd ACN 101 130 509 (ABW) be wound up in insolvency under the provisions of that Act. 2 On an application under s 459P, the Court may order that an insolvent company be wound up in insolvency: s 459A of the Corporations Act. A company is solvent, if, and only if, it is able to pay all of its debt, as and when they become due and payable; if the company cannot, it is insolvent: s 95A of the Corporations Act. For the purposes of an application under s 459P of the Corporations Act, s 459C(2)(a) provides that the Court must presume that the company is insolvent if, during or after three months ending on the day on when the application was made, the company failed, as defined by s 459F, to comply with a statutory demand. In this case the failure to comply is grounded upon an alleged failure to comply with the statutory demand within 21 days after it was served on ABW: s 459F(2)(b) of the Corporations Act. 3 The Commissioner relies upon this statutory presumption for the purposes of the application to wind ABW. He has not otherwise led evidence which would prove that ABW is insolvent in the sense described by s 95A of the Corporations Act. 4 ABW contends that the statutory demand the non-compliance with which grounds the presumption as to insolvency which the Commissioner calls in aid was not served on it. If the statutory demand was not served, it follows that there can no question of any non-compliance with it. If so, the winding up application must necessarily be dismissed. 5 If, as the Commissioner alleges, service is proved by statutory presumption to have occurred on 22 June 2011, there is no doubt that ABW has not complied with the terms of that demand within the time permitted. If so, ABW makes an alternative submission, which is that, as a matter of discretion in the circumstances, the Court should not order its winding up even if the statutory presumption is engaged such that it is presumed to be insolvent. 6 The threshold question therefore is whether the Commissioner has proved service by post of his statutory demand?

Is there proof of service of the statutory demand? 7 The onus of proving service falls on the Commissioner. The proceeding being civil in character, the standard of proof is proof on the balance of probabilities: s 140 of the Evidence Act 1995 (Cth) (Evidence Act). In proving service on ABW the Commissioner seeks to call in aid certain statutory presumptions. 8 Section 109X(1)(a) of the Corporations Act permits the serving of a document on a company by, inter alios, posting it to the company's registered office. A statutory demand is a document to which s 109X of the Corporations Act applies. The Commissioner at least purported to serve his statutory demand on ABW by post. 9 As to what constitutes service by post and related presumptions, the effect of s 5C(2) of the Corporations Act is that the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) as in force on 1 January 2005 is applicable. 10 The statutory demand is dated 16 June 2011. It seeks the payment by ABW of an amount of $254,576.65 as more particularly described in the schedule to the notice for the securing or compounding of that amount to the Commissioner's reasonable satisfaction within 21 days after the service of the demand on the company. The debt is constituted by what is known as a "running balance account deficit debt", which is comprised of the balance of various debts owed by ABW to the Commonwealth and payable to the Commissioner under taxation laws after an allowance for any applicable credits. 11 Mrs Sian Kostolanji (Mrs Kostolanji) who is an Australian Public Servant employed in the Townsville office of the Australian Taxation Office gave the following evidence, the whole of which I accept. She stated that on 16 June 2011 she placed the statutory demand as signed by a Deputy Commissioner of Taxation, together with the affidavit accompanying the statutory demand, into an envelope and sealed that envelope. Also that day her evidence establishes that she: (a) addressed the envelope as follows in her handwriting: ABW Design & Construction Pty Ltd Handys Accountants, Suite 9 Level 1, 1990 Logan Road Upper Mt Gravatt QLD 4122; (b) affixed a stamp to the value of 60 cents to the front of the envelope; and (c) posted the envelope by placing in the Australia Post Mailbox located at the Australia Post Office, Sturt Street, Townsville at 2.09pm. 12 Mrs Kostolanji made a photocopy of the obverse of the envelope containing the statutory demand and accompanying affidavit as postage stamped and addressed by her prior to posting to the envelope. A good quality copy of that photocopy is annexed to the original of her affidavit. A copy of the reverse side of the envelope is not in evidence but there is no suggestion by either party that it bore anything of significance or, for that matter, anything at all. Regard to the copy of the obverse of the envelope discloses: (a) the return address on the obverse has been ruled through, although not obliterated so as to make it completely illegible; and (b) the postcode and, to a lesser extent, the street name ( the word "Road") and State (The "d" in "Qld") in the address are each partially obscured by a "private and confidential" stamp. 13 Mrs Kostolanji confirmed in her oral evidence that she had, prior to posting the envelope, crossed through the return address and stamped the envelope "Private and Confidential". Her intention in crossing out the return address was to remove a redundant, pre-printed return address. No alternative return address was specified on the envelope. The combined effect of this act and that omission was to leave the envelope bereft of a return address. 14 The evidence establishes that, at the time of posting, the Mt Gravatt address which Mrs Kostolanji wrote on the envelope was the registered office of ABW. As registered in the records of the Australian Securities and Investments Commission (ASIC), the address of that registered office includes the post code 4122. 15 Given the location of ABW's registered office, it may perhaps be a source of surprise to the reader that the making of the statutory demand was effected by an officer of the Australian Taxation Office stationed in Townsville in North Queensland. That surprise may be tinged with a note of irony by the following. 16 It was common ground in this case, that, amongst the many other offices throughout Australia which the Commissioner maintains, there is an office of the Australian Taxation Office at Logan Road, Upper Mt Gravatt, on the opposite side of that road and about a 1km away from ABW's registered office. Other features at the evidence in this case were that the affidavit in support of the originating process was deposed to by another officer of the Australian Taxation Office, on this occasion stationed at the Commissioner's office at 140 Elizabeth Street, Brisbane. The audit which underpinned the various taxation debts comprising the "running balance account deficit debt" was apparently conducted by an officer of the Australian Taxation Office based in Penrith, New South Wales. The Australian Taxation Office advice (dated 28 October 2010) to ABW of the completion of that audit specified yet another address of the Australian Taxation Office, an address at Albury, New South Wales, as the address to which to request the remission of any interest charge associated with the taxation debts which were raised. A yet further Australian Taxation Office address was specified in that letter as the address to send any objection in respect of the assessments raised. That address was in Sydney, New South Wales. Though it was but a short walk away from ABW's registered office, the Commissioner's Upper Mount Gravatt office appears not to have been assigned any role either in relation to service of the statutory demand, audit or otherwise. 17 The administration of the Taxation Administration Act 1953 (Cth) (Taxation Administration Act) is, by s 3A, consigned by Parliament to the Commissioner. There are like provisions in respect of other Federal revenue laws relevant to the underlying taxation liabilities in this matter. There may, perhaps, be good reasons as to why the Australian Taxation Office is presently administered in the manner described, which has resulted in a plethora of different office locations, with the notable exception of the Upper Mount Gravatt office, being concerned with the taxation affairs of ABW. It is neither necessary nor appropriate for a court to explore that subject. Instead, it is necessary to address what is the consequence in the circumstances of this particular case of that present manner of public administration and the use of the post rather than a short walk along and across the road with the statutory demand and supporting affidavit by one of the Commissioner's officers. 18 At the material time, s 28A and s 29 of the Acts Interpretation Act respectively provided: 28A Service of documents (1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then [unless the contrary intention appears], the document may be served: (a) on a natural person: (i) by delivering it to the person personally; or (ii) by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or (b) on a body corporate -- by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate. (2) Nothing in subsection (1): (a) affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or (b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection. 29 Meaning of service by post (1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then [unless the contrary intention appears] the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. (2) This section does not affect the operation of section 160 of the Evidence Act 1995. In turn, s 160 and s 163 of the Evidence Act respectively provide: 160 Postal articles (1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted. (2) This section does not apply if: (a) the proceeding relates to a contract; and (b) all the parties to the proceeding are parties to the contract; and (c) subsection (1) is inconsistent with a term of the contract. (3) In this section: "working day" means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or a bank holiday in the place to which the postal article was addressed. Note: Section 182 gives this section a wider application in relation to postal articles sent by a Commonwealth agency. 163 Proof of letters having been sent by Commonwealth agencies (1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. (2) In this section: "business day" means a day that is not: (a) a Saturday or a Sunday; or (b) a public holiday or bank holiday in the place in which the letter was prepared. "letter" means any form of written communication that is directed to a particular person or address, and includes: (a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and (b) any envelope, packet, parcel, container or wrapper containing such a communication; and (c) any unenclosed written communication that is directed to a particular person or address. Note 1: The NSW Act has no equivalent provision for section 163. Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts. It is not necessary to refer either to s 5 or to s 182 of the Evidence Act for the purposes of deciding this case. 19 As to s 163 of the Evidence Act, a Deputy Commissioner of Taxation is a person who falls within the definition of "Commonwealth agency" for the purposes of that Act in that a Deputy Commissioner is a person holding office or exercising power under or because of a law of the Commonwealth: see s 7 of the Taxation Administration Act and the definition in Pt 1 of the Dictionary and s 3 of the Evidence Act: Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd (2010) 190 FCR 1 at [17] (Deputy Commissioner of Taxation v Clear Blue Developments). Further, having regard to the broad definition of "letter" in s 163(2) of the Evidence Act, a statutory demand is a "letter": Deputy Commissioner of Taxation v Clear Blue Developments at [18]. 20 As with s 109X of the Corporations Act, s 28A of the Acts Interpretation Act is facultative. Neither section assists in determining when a document permissibly served by post is to be taken to have been served. That said, even their facultative role with respect to service by post is engaged only if there is compliance with the elements set out in those sections. Those elements were analysed to like effect by Barrett J in Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 at [18], by Debelle, J in Dwyer v Canon Australia Pty Ltd [2007] SASC 100 at [6] and by Brereton J in Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 at [12]. Of these elements, it is only necessary to refer to one. That is that the document be posted to the company's registered office. 21 Materially, s 142 of the Corporations Act requires a company to have a registered office in "this jurisdiction". The latter is a term defined (s 9 of the Corporations Act) by reference to a geographical area which materially comprises the internal territories and each referring State (in the result, all States). The term "registered office" is not separately defined for the purposes of s 28A of the Acts Interpretation Act but in context and for an Australian registered body corporate it is necessarily a reference to the registered office of that body corporate under Australian law. For present purposes, that is the same address as that registered for the purposes of s 142 of the Corporations Act. Inferentially, from the reference in s 142(3) of the Corporations Act to a change of address of a company's registered office, a registered office must be an "address". In respect of a registered office, s 100 of the Corporations Act requires that the specification in a notice to ASIC of a company's registered office or change of such office be the "full address, or the full new address, as the case requires, of the relevant office including, where applicable, the number of the room and of the floor or level of the building on which the office is situated". In relation to whether a post code must be included, the presence of the adjective, "full" may be significant, if not determinative but it is unnecessary to decide this. It is enough that, as a matter of construction and having regard to s 100 and s 142 in particular, the Corporations Act does not forbid the inclusion of a post code in the address recorded in the register as the registered office of a company. 22 Section 183 of the Evidence Act provides: Inferences If a question arises about the application of a provision of this Act in relation to a document or thing, the court may: (a) examine the document or thing; and (b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn. Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents. The original of the envelope which contained the statutory demand and supporting affidavit is not in evidence but, as noted above, a good quality copy of its obverse side is. What became of the original is moot, which raises separate issues in relation to proof and date of service. For the moment, all that it is necessary to record is that the description which I have offered above as to what has been obscured by the "private and confidential" stamp placed on the envelope is drawn from my examination of the copy which is in evidence. What is obscured includes the post code. 23 There was quite some debate before me, reflecting, in turn, differences on the authorities, as to whether or not a post code is part of an address. It will be necessary shortly to refer to those authorities. To focus first on them is though apt to distract, at least in the circumstances of this particular case, from the application of the language of s 28A of the Acts Interpretation Act and s 109X of the Corporations Act to the facts. Whatever may be the case with other corporate registrations, the registered office of ABW includes a post code. 24 In my opinion, the obscuring of the post code by over stamping means that the envelope containing the statutory demand and supporting affidavit has not been sent by the Commissioner by post to the registered office of ABW. That means that the Commissioner has not complied with the terms upon which s 28A of the Acts Interpretation Act and s 109X of the Corporations Act permit a document such as a statutory demand to be served by post on this particular company. No other manner of service was adopted. 25 In Topfelt Pty Ltd v State Bank of New South Wales Ltd (1993) 47 FCR 226 at 231 Lockhart J detailed the history of the introduction of the Corporate Law Reform Bill 1992 (Cth) which, as enacted, inserted Pt 5.4 into the former Corporations Law, now materially replicated in Pt 5.4 of the Corporations Act. Regard to that history, confirmed by the presence of s 467A within that part of the Corporations Act, discloses that Parliament intended that winding up applications ought not to be dismissed merely because of: (a) in any case - a defect or irregularity in connection with the application; (b) in the case of an application for a company to be wound up in insolvency - a defect in a statutory demand. Similar parliamentary sentiments are evident in s 459J in relation to the setting aside of a statutory demand. 26 Nonetheless, the position remains that, where the terms of s 459F are satisfied on the facts, a presumption of corporate insolvency arises by virtue of s 459C. That can have the serious consequence of establishing a ground for the winding up of a company to say nothing of any wider, commercial consequences. In my opinion, non-compliance with an authorised mode of service is not a "defect in a statutory demand" in terms of s 467A. It is a defect with respect to the service of that statutory demand. Nor, in my opinion, is want of proof of service of a statutory demand a defect or irregularity "in connection with" the application. It is a defect or irregularity "in connection with" the service of the statutory demand. Further and in any event, the want of proof of compliance with an authorised mode of service is not a "mere" defect or irregularity. It is critical to procedural fairness in respect of the operation of the statutory presumption of insolvency in the statutory scheme for the winding up of insolvent companies. The accurate ascertainment of the commencement of the period within which a company is given time to comply with the terms of the statutory demand lest the presumption of insolvency arise is of cardinal importance in that statutory scheme. That period is not one which is capable of extension: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265. To enjoy the benefit of the presumption, an applicant must prove that it is applicable. This the Commissioner has not done. 27 The position is not changed by regard to the first part of s 29 of the Acts Interpretation Act. Whatever else "properly addressed" may mean, so far as a corporation is concerned it must mean addressed in a manner authorised by law. That manner is specified in s 28A of the Acts Interpretation Act and s 109X of the Corporations Act. Section 28A presents a number of postal address options in respect of a body corporate but the only one chosen by the Commissioner was the registered office. The postal option offered by s 109X of the Corporations Act is confined to the company's registered office. The balance of s 29 of the Acts Interpretation Act is directed to a presumption as to when service is deemed to be effected. The application of that deeming effect is necessarily dependent upon compliance with the authorised manner of postal service. Contrary to a submission made by the Commissioner, the same follows in respect of the presumptions for which s 160 and s 163 of the Evidence Act provide. 28 It follows that, for these reasons alone, the winding up application must be dismissed. 29 Lest the foregoing analysis be incorrect and in deference to the submissions of the parties, further consideration of the question of whether service by post has been proved to have been effected even though the post code of the registered office has been obscured is necessary. 30 As was made plain by a helpful and candid submission by Mr Marks of counsel for ABW, the authorities concerning whether or not a post code is to be regarded as part of an address are not all one way. For the purposes of a statutory provision permitting service by post, Bryson J concluded in Wallville Pty Ltd v Liristis (2001) 10 BPR 19,089; [2001] NSWSC 894 at [19] that that postal context meant that an address included a post code. To the contrary are cases collected and the conclusion reached by Schmidt AJ in Perpetual Ltd v Treloar (2009) 14 BPR 27,699; [2009] NSWSC 386 at [20] - [32]. Those cases notably include two judgments of the Full Court, SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 and SZLBR v Minister for Immigration and Citizenship [2008] FCAFC 85 in each of which the conclusion reached by Emmett FM in SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141 at [39]-[40], which was that a post code was not an essential part of the identification of a physical location, is referred to with approval. Her Honour reached that conclusion by reference to dictionary meanings of the word "address", which defined the word not by any inclusive reference to a post code but rather just as a place where a person lives or may be reached. A like approach to the construction of the word "address" is evident in Sunrise Auto Ltd v Commissioner of Taxation (1995) 61 FCR 446 at 455 per Beaumont and Beazley JJ, Drummond J agreeing in this regard, though in that case it was not expressly necessary to consider whether an address included a post code. 31 While in the migration cases the result turned on an absence of practical injustice given that the applicant had in fact received the document concerned, I consider that I ought nonetheless to follow the clear expressions of approval by the Full Court in those cases for a conclusion that a post code is not an essential part of an address. The statutory context in which those cases were decided does not admit of any material distinction so far as what constitutes an "address" for the purposes of proof of service. Such a conclusion does not carry with it the further conclusion that it is impermissible for a company to include a post code in its registered office as notified to ASIC or for ASIC to include that post code in the register. An "address" may, but not must, include a post code. 32 On this approach, what has occurred here is that the statutory demand and supporting affidavit have been sent by post to ABW's "address", the obscuring of the post code being immaterial. So far as the presumption for which the second part of s 29 of the Acts Interpretation Act provides is concerned, the Commissioner has led no evidence as to when the letter containing these documents would have been delivered in the ordinary course of the post to ABW's address at Upper Mount Gravatt if posted in 16 June 2011 from Townsville. Presumably, such evidence would be available from an officer of the Australian Postal Corporation by reference to that corporation's delivery standards and performance against those standards. Such evidence seems to have been led in other postal service cases. It is not a matter of which I can take judicial notice. Instead, the position is as described by White J in Scope Data Systems Pty Ltd v Goman as Representative of the Partnership BDO Nelson Parkhill (2007) 70 NSWLR 176 at [38]: [38] … If the evidence establishes the time at which the article is delivered to the postal address, then that is the time at which service is taken to be effected. If the evidence does not establish the time at which delivery was effected, then, unless the contrary is proved, delivery is deemed to have been effected in the ordinary course of post. What that is is a question of fact to be proved by evidence. In the absence of evidence on the topic, and in the absence of any presumption, there will be no proof that the article was delivered at a particular time. If it is established that the article was not delivered in the ordinary course of post, but the evidence does not establish when it was delivered, then again there will be no evidence as to the time of delivery. In either case, s 160 of the Evidence Act (Cth) (applicable to federal courts), or s 160 of the Evidence Act (NSW) (applicable to New South Wales courts), affords a presumption as to when the article is to be taken to have been delivered. The presumption may assist in proving when delivery was made in the ordinary course of post. If the evidence shows that the article was not delivered in the ordinary course of post, the presumption may assist in proof of when the document was delivered. I referred with approval to this statement in Deputy Commissioner of Taxation v Clear Blue Developments at [14], as earlier did Ferguson J in Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd [2010] VSC 385 at [21]. 33 ABW led evidence from Ms Juanita Wilson, an accountant, who is the principal of the accountancy firm Handys Accountants whose office is and was last year at 1990 Logan Road, Upper Mount Gravatt. With the inclusion of the post code 4122, the address of that firm was the registered office of ABW until October 2011. Ms Wilson has practised as an accountant since 1979 and been a member of the Institute of Public Accountants since 2003. 34 Ms Wilson deposed to a system in place at the firm in relation to the collection of mail. Though in her affidavit she deposed to a system as at 30 June 2011, it became plain in the course of her cross-examination that this same system was in place not only in June 2011 but also in May 2011 if not before then. 35 I considered Ms Wilson to be an honest witness doing her best to assist the Court. I accept the whole of her evidence. The system which she described involved the collection of mail each day, usually by one or the other of two support staff in the firm but occasionally by her personally. What then occurred under the system was that the support staff opened and date receipt stamped collected mail and delivered that to the person within the firm responsible for the subject of the correspondence. In the case of ABW, that person was Ms Wilson. 36 Ms Wilson deposed in her affidavit that, since 30 June 2011, the only documents addressed to ABW which had come to her attention via this office system in the firm were a communication from the building services authority and the Commissioner's letter of 10 October 2011 enclosing the winding up application and supporting materials. It also became plain in the course of her oral evidence that the position was no different, so far as the receipt by her of material addressed to ABW was concerned, earlier in June 2011. 37 On the basis of Ms Wilson's evidence, I find that the statutory demand dated 16 June 2011 and accompanying affidavit in the envelope addressed as described were never received at the address, 1990 Logan Road, Upper Mount Gravatt. More particularly, accepting as I do Ms Wilson as an honest witness, I consider it inherently unlikely that an accountant of her experience would not remember the receipt by her of a statutory demand addressed to a client at the firm's address. Further, her evidence was that the accountancy practice was a small one such that the support staff knew most of the clients and the person to whom to allocate the mail with any doubt attending allocation being referred to her. Again, it seems inherently unlikely in such circumstances that Ms Wilson's ignorance of the receipt of the statutory demand is referable to an internal misallocation of received mail. 38 As has been said, proof of non-receipt is not proof of non-delivery: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 96-97; Deputy Commissioner of Taxation v Gruber (1998) 43 NSWLR 271 at 277. The Commissioner has called in aid the presumptions for which one or the other or each of s 160 and s 163 of the Evidence Act provide. Each of these operates, "unless evidence sufficient to raise doubt about the presumption is adduced". The meaning of this qualification in comparable New South Wales legislation was considered by Cowdroy J, in his Honour's then capacity as a judge of the New South Wales Land and Environment Court, in Muli Muli Local Aboriginal Land Council v Kyogle Shire Council (2004) 132 LGERA 80 at [29]: [29] No indication is provided by the Interpretation Act to suggest that the nature of the "doubt", and the Parliamentary debates leading to the inclusion of s 76(1)(b) in the Interpretation Act do not assist. In these circumstances, the Court must draw the inference that the qualification to the presumption could be utilised in instances in which the posted rate notice was never received. This was precisely the circumstances considered by Denning MR in Hewitt v Leicester Corp [1969] 1 WLR 855. In that case a statutory presumption was raised by the Interpretation Act 1889 (UK) which deemed service to be effected when the letter would have been delivered in the ordinary course of the post. The letter was returned and marked "gone away". Denning MR held that service in such circumstances had not been effected. Denning MR said at 858: "We are not bound to "deem" a notice to be served at a particular time when we know that in fact it was not served at all." The words in s 76(1)(b) of the Interpretation Act "unless evidence sufficient to raise doubt is adduced to the contrary" is intended to apply to circumstances such as those prevailing before Denning MR. See also Regina v County of London Quarter Sessions Appeals Committee; Ex parte Rossi [1956] 1 QB 682, which confirmed that proof of non-receipt of a document in the ordinary course of post nullified the presumption. For a decision of similar consequence, see Nicholson v Tapp [1972] 1 WLR 1044. See also Prospect County Council v Lethorn and Another [1980] 2 NSWLR 464 at 469. 39 His Honour's judgment was reversed on other grounds by the Court of Appeal: Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361. However, in so doing and with reference to the qualification "unless evidence sufficient to raise doubt about the presumption is adduced", Tobias JA, with whom Ipp JA and Brownie A-JA agreed stated, at [52]: Resolution of this issue requires consideration of whether the statutory presumption may be rebutted by evidence that the letter containing the notice was in fact delivered on 1 August 2003 or whether the relevant doubt is confined to the adducing of evidence with respect to the letter's receipt by its addressee. The primary judge considered that such evidence was confined to the non-receipt of the letter containing the document. In the circumstances, it is unnecessary to resolve finally this issue but my failure to do so should not be construed as necessarily indicating my agreement with the view expressed by his Honour. 40 In the present case, it is likewise unnecessary to decide whether evidence that a document was in fact delivered might permissibly be admitted to rebut the type of presumption for which s 160 and s 163 of the Evidence Act provide. No evidence as to when the statutory demand and accompanying affidavit were in fact delivered was led by either party. At the very least and for the reasons given by Cowdroy J, proof of non-receipt would rebut the presumption. Here, there is such proof. Neither s 160 nor s 163 of the Evidence Act operates so as to presume the receipt of these documents at a particular time. 41 Proof of non-receipt is also relevant to but not decisive of whether there was non-delivery of the addressed envelope containing these documents. There was evidence that the envelope had not been returned to the Townsville office of the Australian Taxation Office but that is hardly surprising as the only return address on the envelope was struck out. Taking this into account in conjunction with proof of non-receipt and the partial obscuring of the address, I am satisfied on the balance of probabilities that envelope containing the documents was not even delivered. Further and in any event, there is, as noted, no evidence as to when the envelope as addressed would have been delivered in the ordinary course of the post. 42 It follows that, however one approaches this matter, the Commissioner has not proved non-compliance with the statutory demand within 21 days after it was served on ABW. He has not even proved that it was served. 43 In these circumstances, it is unnecessary to consider whether, if the Commissioner had proved, by statutory presumption or otherwise, that ABW was insolvent, a winding up order nonetheless ought not to be made as a matter of discretion. I collected the authorities concerned in relation to the exercise of that discretion in Deputy Commissioner of Taxation v Tilley Property Management Services Pty Ltd [2011] FCA 678. There was evidence before me, including evidence from ABW's present accountant, Mr Robert Bigalla, as to what would remain if credits as a result of amended business activity statements were applied and objections to underlying assessments were both valid and allowed. On one view, nothing would remain outstanding by ABW but the correctness of that view was controversial in law and in fact, including whether valid objections had been lodged. Given that it is unnecessary to consider the exercise of the discretion, I consider it inappropriate to make and I expressly refrain from making any observation either on the validity of the objections or what might be their prospects of success in the circumstances disclosed. Instead, for the reasons given above, I dismiss the winding up application, with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Deputy Commissioner of Taxation, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd

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